The Roberts Court Is One of the Least Activist Courts of the Modern Era

Now, I've got to say right off the bat: I don't know what the outcome of the case will be and neither does anybody else except the justices, their clerks, and a half-dozen other people. What follows is merely a reply to liberal idiocy, not an implied prediction of the outcome of the case. We may not win.

In their effort to preemptively attack the credibility of the Supreme Court in general and Chief Justice Roberts in particular, liberals have started spreading a stupid and easily refutable lie.

It started with that James Fallows character who claimed the Supreme Court was about to perpetrate a coup. He claimed that Justices Roberts and Alito in particular, “actively second-guess and re-do existing law.” Jeffrey Toobin, CNN's chief law analyst who completely shit the bed predicting that no lower court would even pretend that the Obamacare lawsuits had merit, also oozed this lie, claiming that the Roberts Court has been "eager" to overturn legislatures. This lie was ultimately repeated by Politico's dim and shallow Roger Simon and now it is ubiquitous and unchallenged among liberals.

Yes, in about 48 hours liberals managed to cook up this claim and now they're all scurrying around repeating it like a bunch of lemmings. There's just one problem: it is completely untrue.

This is not a matter of opinion. We can actually count how often various Courts have "re-done existing law" and "overturned legislatures." And such a count reveals that the Roberts Court doesn't overturn as many precedents as its three predecessors. The Roberts Court doesn't even come close to overturning the number of laws that its three predecessors did.

Here's the data on the first five years of the Roberts Court (gleaned from this NYTimes infographic):

(1) The Warren, Burger, and Rehnquist Courts overturned precedent decisions at an average rate of 2.7, 2.8 and 2.4 per term, respectively. By contrast, the Roberts Court overturned precedent only at an average rate of 1.6 per term.

(2) The Warren, Burger, and Rehnquist Courts overturned laws at an average rate of 7.9, 12.5, and 6.2 laws per term. By contrast, the Roberts Court struck down only 3 laws per term.

Just three laws per term! Far, far from being "eager" to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in "second-guessing laws," as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts' well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)

Should the mandate be overturned today, liberals will repeat their lie endlessly in order to cast doubt on the legitimacy of the Supreme Court and to tarnish the Chief Justice's good name. You know better. Do not believe this sad, angry lie. And do not let some foolish lemming repeat it in your presence. The truth is that the Roberts Court has been unusually restrained in overturning laws when compared to its predecessors.

Posted by: Gabriel Malor at 07:30 AM



Comments

1 Good to know.
Thanks.

Posted by: maverick muse at June 28, 2012 07:31 AM (BAnPT)

2 Arizona.

Posted by: lan sing at June 28, 2012 07:33 AM (9/NoY)

3 Well Gentlemen:

I'm off to work. By the time I say my hellos there, the fate of this generation may well be announced. It was nice knowing America; I hope I won't have to miss her too much.

Posted by: CoolCzech at June 28, 2012 07:33 AM (niZvt)

4 That term has become worthless it has been abused so much.

Rinse and repeat

Fox reporter defines judicial activism.

Judicial activism properly refers to how a judge interprets the law, rather than the subjective desirability of the outcome of a case. It occurs when judges write subjective policy preferences into their decisions rather than interpreting the constitutional or statutory provisions according to the law’s original meaning or plain text.

Posted by: Vic at June 28, 2012 07:33 AM (YdQQY)

5 btw, Local a.m. talk radio topic is the Left's demand to force Scalia from the SCOTUS for comments after the AZ Law ruling.

Posted by: maverick muse at June 28, 2012 07:34 AM (BAnPT)

6 The Supreme Court is full of radical right wingers and the Tea Party is dead; just two of the many hand wringing memes to be pounded like so many limp chickens over the next 4 months.
Predictable, laughable, pathetic.
**
Morn ya'll

Posted by: dananjcon aka Jealous Fat Bastard at June 28, 2012 07:36 AM (eavT+)

7
Look for obumbles to load the bench after o'care gets shot down.


Gotta change a tire. bye y'all.

Posted by: Cicero Kid at June 28, 2012 07:37 AM (Nj0Fd)

8 Sotomayor spoon feeds US Attorney languishing under Court questioning, unable or unwilling to simply answer a question. "What you mean to say, I believe, is ..."

Posted by: maverick muse at June 28, 2012 07:37 AM (BAnPT)

9 Off chubby sock..go have snack.

Posted by: dananjcon at June 28, 2012 07:38 AM (eavT+)

10 If you say it enough times it becomes the truth.

Posted by: Jay Carney at June 28, 2012 07:39 AM (thViL)

11 Their lies are their binky.

Posted by: nickless at June 28, 2012 07:41 AM (MMC8r)

12 ROMNEY up by three! VICTORY for America!

Posted by: Ten at June 28, 2012 07:41 AM (56DAY)

13 Liberals never change.

Their definition of "bipartisanship" is "shut up and do everything we say". During the health care hearings they could have reached out to Republicans but would have none of it. The reason why we as the minority were able to cause them so manyu problems is that their own members were afraid of the far left agenda of their leadership.

We saw that play out in 2010.

Speaking of 2010, weren't the liberal lackeys in the MSM still saying about this far out from the election that Democrats would easily hold the House if not gain seats? The same ones telling us Obama can't lose now?

Posted by: Bill Mitchell at June 28, 2012 07:42 AM (hlUJY)

14 You'd think, being the giant fucking losers that they are, that libs would take defeat better. No matter what happens today, it sucks to be them.

Posted by: Captain Hate (dagny solidarity) at June 28, 2012 07:44 AM (HqfLg)

15 What's ironic is how much better off the country would be if the Court were more activist, in the sense of eradicating prior liberal precedents. What's more ironic is that if Reagan had tapped someone like Ken Starr, Harvie Wilkinson, Edith Jones or Frank Easterbrook, instead of setting for Kennedy, and thereby making a huge mistake, the whole discussion would be academic: conservatives would win 100% of the time and for the past 25 years that would have been the case.

In any event, leftism is a severe mental disorder, not a valid ideology, ergo if the Court later this a.m. strikes down Obamacare you can bet your bottom dollar the left will melt down into abject lunacy mode. Then they'll really get crazy.

Posted by: Tsar Nicholas II at June 28, 2012 07:45 AM (r2PLg)

16 I love the NYT infographic. What exactly is a 'conservative ruling'? One that follows the constitution and the rule of law? WTF does that make a 'liberal ruling'?

Posted by: Countrysquire at June 28, 2012 07:48 AM (1hLHC)

17 What's more ironic is that if Reagan had tapped someone like Ken Starr,
Harvie Wilkinson, Edith Jones or Frank Easterbrook, instead of setting
for Kennedy, and thereby making a huge mistake, the whole discussion
would be academic: conservatives would win 100% of the time and for the
past 25 years that would have been the case.



RR couldn't get a hard core conservative on the court because the Dems would Bork him. Republicans haven't had a 60 vote Senate in over a 100 years.

Posted by: Vic at June 28, 2012 07:49 AM (YdQQY)

18 Fuck th nytime they love to put the word "conservative" in there 50 times.....but they never label the liberal members.

Posted by: Mr Pink at June 28, 2012 07:49 AM (MpDjI)

19
The truth is that the Roberts Court has been unusually restrained in overturning laws when compared to its predecessors. <<<

AND has 33% more sexy bitches than any previous court.

Posted by: Empire of Jeff at June 28, 2012 07:49 AM (JDIKC)

20 Thanks Gabe, some info worth knowing.

Just as an aside though, any time I see previous Chief Justices discussed, I get Warren and Burger mixed up because Burger's first name is Warren.

I wonder if you legal types have the same problem.

Posted by: BurtTC at June 28, 2012 07:50 AM (2pG7H)

21 The irony...

The liberal schools are brainwashing and dumping "empathetic" lawyers into the lower courts - truly rewriting the laws, and causing a tipping point to one side of ideology.

I hate these people.

Posted by: beer in fridge at June 28, 2012 07:51 AM (HOOye)

22 The way I figure it, if it's upheld Obama won't be able to resist repeated ball spiking, and will show his true dictatorial strak.

If it's the mandate only portion that is struck down, he will attempt some sort of EO to fund it, making people even more enraged.

And if it is struck down entirely, he will go on a scorched earth against all things GOP, like Arizona only bigger, which should give Romney at least 10 points in the polls.

I am not going to get upset no matter what. You cannot allow events to control how you feel about life.

Posted by: Miss Marple at June 28, 2012 07:51 AM (GoIUi)

23
We are at a point in our nation's history where an incomprehensible twenty-seven hundred page law might be upheld as Constitutional.

Posted by: soothsayer is in the cat's box at June 28, 2012 07:52 AM (GUbzo)

24 5 btw, Local a.m. talk radio topic is the Left's demand to force Scalia from the SCOTUS for comments after the AZ Law ruling.
Posted by: maverick muse at June 28, 2012 07:34 AM (BAnPT)
=======


yeah, whatever. It's Kagan that should have recused herself.

Posted by: beer in fridge at June 28, 2012 07:53 AM (HOOye)

25 Thanks, Miss Marple, Very well and calmly said.

(I also admire the books about your crime solving skills as well)

Posted by: FenelonSpoke at June 28, 2012 07:53 AM (DfJ0y)

26 The good news is there is room in the schedule to get to work on Dood-Fwank.

Posted by: sTevo at June 28, 2012 07:53 AM (hiMsy)

27 What really worries me is that if it is upheld, then Obama and his ilk will realize that there are no limits as to what the government can compel you to do. The sky will be the limit. Our nation's freedom is at stake this morning.

Posted by: Countrysquire at June 28, 2012 07:54 AM (1hLHC)

28 As usual, lefty theories fall when confronted with facts.

Facts: the kryptonite of the left.

Posted by: epobirs at June 28, 2012 07:54 AM (kcfmt)

29 AND has 33% more sexy bitches than any previous court.

Yes, but the Chief Justice doesn't like it if you call him a sexy bitch to his face.

Posted by: Gabriel Malor at June 28, 2012 07:54 AM (DhD8T)

30 AND has 33% more sexy bitches than any previous court.

50%--EOJ, I expected better.

Posted by: Circa (Insert Year Here) at June 28, 2012 07:55 AM (B+qrE)

31 Thank you Gabe for this information. It will come to good use should Obamacare be struck down. I have a couple of liberal "thinkers" in my f amily who will be spouting the judicial activism meme in that scenario.

Posted by: Museisluse at June 28, 2012 07:56 AM (TLoND)

32 #25 I have been working my crime-solving skills overtime the last 3 years.

If Romney is elected, I can retire to St. Mary Meade with my knitting and perhaps a large case of gin.

Posted by: Miss Marple at June 28, 2012 07:56 AM (GoIUi)

33 Local a.m. talk radio topic is the Left's demand to force Scalia from the SCOTUS for comments after the AZ Law ruling.
Good luck with that, dillholes. If Breyer can hang around forever, so can our guy.

Posted by: Circa (Insert Year Here) at June 28, 2012 07:57 AM (B+qrE)

34 The sky will be the limit. Our nation's freedom is at stake this morning.
Posted by: Countrysquire at June 28, 2012 07:54 AM (1hLHC)

------

Yep, the reason for most folks tension.

Posted by: beer in fridge at June 28, 2012 07:57 AM (HOOye)

35 The stench of desperation this morning, smells like victory. May it be so.

Posted by: Anna Puma at June 28, 2012 07:57 AM (ZHrEM)

36

Obama Prepares Three Speeches Ahead of Health-Care Ruling

But Mr. Obama has been doing more than sitting back and waiting. The president has three separate speeches prepared in anticipation of the ruling on his signature legislative achievement, a person familiar with them said.

One of the speeches addresses a complete overturn of the law, while another is crafted as if the court strikes down the law’s individual mandate but upholds other provisions. The third speech, for if the court upholds the entire law, is more celebratory, according to this person.



wsj


Posted by: meh at June 28, 2012 08:00 AM (HOOye)

37 Let us remember to contrast Jan Brewer's reaction to the Arizona ruling with what I am certain will be a petulant reaction from the classless Marxists in the White House.

Posted by: Miss Marple at June 28, 2012 08:01 AM (GoIUi)

38 The same ones telling us Obama can't lose now?

----

Pad Caddell, whom I have to say I like despite him being a Dem, told Hannity last night, "you have no idea who you're dealing with" when Hannity make some off the cuff remark that Obama may lose. He repeated himself again. Kinda in an eerie way. Let's just say it gave me pause because I respect the guy.

Posted by: Lady in Black at June 28, 2012 08:01 AM (vOMX+)

39 Oh, to be a fly on the wall at the MSNBC green room this morning.
***
Lem-on-tay-shuns!

Posted by: dananjcon at June 28, 2012 08:01 AM (eavT+)

40 Hi! I'm AG Eric Holder. And I would just like to set the record straight. I do not have contempt for the U.S. congress. I have contempt for the entire United States!

Posted by: Case at June 28, 2012 08:01 AM (gyQY/)

Posted by: Retread at June 28, 2012 08:02 AM (I2fq9)

42
Dear Barack,

When the Supreme Court affirms Obamacare, the first order of business is an Executive Order requiring citizens making over 50K to purchase a Chevrolet Volt. This is a big fucking deal!


Joe

Posted by: Joe "Slow Joe" Biden at June 28, 2012 08:02 AM (hvwLi)

43 Pad = Pat

Posted by: Lady in Black at June 28, 2012 08:02 AM (vOMX+)

44 We need a Laura W. thread to kill the next couple of hours. I can hold my dick that long, but I'll quickly reach a point of diminishing returns.

Posted by: Beefy Meatsack at June 28, 2012 08:02 AM (mxnUd)

45 #36 As I surmised, he will behave exactly as predicted:

Ball spiking, overreaching EO's, or scorched earth.


Posted by: Miss Marple at June 28, 2012 08:02 AM (GoIUi)

46 "Should the mandate be overturned tomorrow, ..."

Did you write this last night?

Posted by: dogfish at June 28, 2012 08:03 AM (N2yhW)

47
EOJ, I expected better.<<<<

That was dumb. I'd think you would have learned by now to lower your expectations.

Posted by: Empire of Jeff at June 28, 2012 08:05 AM (JDIKC)

48
The lack of activism is understandable, given that nowadays that puke Kennedy basically IS the court. His whim governs all, and nobody wants to take a risk that the damn loon will turn on them. It's sickening.

IF we ever get a real court in place, one that is ready to do its true duty, they damn well better get hyper-activist in a hurry, and shop for cases to get this country fixed up. They need to start handing out majority opinions written by Scalia on a near-daily basis. We've got 50+ years of bad decisions to undo. That's a hell of a lot of damage control.

Posted by: Reactionary at June 28, 2012 08:06 AM (xUM1Q)

49
I'm looking at Obamacare coverage on CNN.

Credit on purgatory?

We are getting ready to drive halfway across the country- thank God for satellite radio!

Posted by: Justamom at June 28, 2012 08:07 AM (Sptt8)

50 15 "What's more ironic is that if Reagan had tapped someone like..."

Reagan COMPROMISED the SCOTUS intentionally, for political favor with Democrats, to prove he was a nice guy after all, reasonable, and fair.

Bush extended the compromise, politically expedient appts. For whom?

Leaving Scalia out to dry is hardly "balanced" let alone legitimate.

Supreme Court Justices who bend over backwards to play "kinder, gentler"
with Marx rather than constrain basis for decisions upon the Constitution as
Supreme Law aren't doing conservatism any favors, which is the point.

Posted by: maverick muse at June 28, 2012 08:08 AM (BAnPT)

51 What is this courts thing you claim exists, is this one of those cable show thingies?

Posted by: Charlie Gibson at June 28, 2012 08:08 AM (HNn1q)

52 AND has 33% more sexy bitches

"Rubio, warned us about you guys, Morons? right?"

Posted by: Justice Scalia picking up his morning paper in his slippers at June 28, 2012 08:08 AM (EyTMo)

53 Whoops, thanks, dogfish. And yeah.

Posted by: Gabriel Malor at June 28, 2012 08:10 AM (DhD8T)

54 The Obamacare travesty ought to be struck down just for the use of "...to be determined by the Secretary Of Health and Human Services" something like 500 times. If not, then why not just pass a law that says "All international business shall be regulated in a manner to be determined by the Secretary of Commerce." and leave it at that? Why not just pass the buck for all laws to the Executive branch? "The executive branch shall rule the nation through regulatory powers and will request new legislation at its discretion." Then Congress can go back to running football and voting itself pay raises.
Putzes.

Posted by: Daybrother at June 28, 2012 08:10 AM (X3HIv)

55 You Can't Hurry Us
No, You'll Just Have To Wait
Rulings Don't Come Easy
It's A Game Of Give And Take
-The Supremes

Posted by: Case at June 28, 2012 08:11 AM (gyQY/)

56 I want to spike the ball.

Posted by: Mr Pink at June 28, 2012 08:11 AM (MpDjI)

57 37 Let us remember to contrast Jan Brewer's reaction to the Arizona ruling
with what I am certain will be a petulant reaction from the classless
Marxists in the White House. -- Miss Marple

Good point. And with that, remember the setting, how the MSM has persisted in vilifying Brewer as a witless, unstable shrew.


Posted by: maverick muse at June 28, 2012 08:12 AM (BAnPT)

58 Wow ace post up now

Posted by: Vic at June 28, 2012 08:13 AM (YdQQY)

59 Just for the record: 33% more sexy bitches refers to the stripper pole in Thomas' office- not the 3black robed things. Right?

Posted by: Beefy Meatsack at June 28, 2012 08:15 AM (mxnUd)

60 Did you write this last night?
Posted by: dogfish at June 28, 2012 08:03 AM (N2yhW)




Um, yea, the WSJ did. At 10pm last night...

Posted by: meh at June 28, 2012 08:15 AM (HOOye)

61 Where is the SCOTUS response to Obama's REFUSAL to enforce the law, to this President's gross abuse of office against States in the Union, to Obama's refusal to honor the SCOTUS decision, point blank refusing to take calls from Arizona government officials?

Posted by: maverick muse at June 28, 2012 08:16 AM (BAnPT)

62 Overturns per court average is not a great indicator.
The #s are too small.
Overturns get picked from the precedents that make it to the court that term.

Posted by: DaveA at June 28, 2012 08:20 AM (EyTMo)

63 The reason I think this law will be upheld is that they didn't release it sooner. Even they know that if they threw the law out it would have stopped billions in useless spending. They didnt.

It's going to be upheld embrace the suck.

Posted by: Mr Pink at June 28, 2012 08:21 AM (MpDjI)

64 If Breyer can hang around forever, so can our guy.

Please, please, please, let Breyer and Ginsberg hang around for another 6 months.

Posted by: pep at June 28, 2012 08:21 AM (YXmuI)

65 Overturns per court average is not a great indicator.

Then what is?

Fallows, Toobin, and Simon are the ones running around making the fantastic claim. Either they back it up with something, or they can STFU when presented with this metric.

Never let the left select the null hypothesis. If they want to be bitchy about it, then let's take it to the logical conclusion: might makes right.

Posted by: FRONT TOWARD LEFT at June 28, 2012 08:27 AM (p7SSh)

66 Reagan COMPROMISED the SCOTUS intentionally, for political favor with Democrats, to prove he was a nice guy after all, reasonable, and fair.
Riiiiiiight. Justices are a crapshoot. You never know how they will turn out.

Give it a rest.

Posted by: Circa (Insert Year Here) at June 28, 2012 08:36 AM (B+qrE)

67 Overturns get picked from the precedents that make it to the court that term.

And the justices have near-ultimate control over which and how many cases it accepts. The Roberts Court, rather than being "eager" to accept cases giving it the chance to overturn law, typically accepts half the number of cases that its predecessors did. Yet another metric indicating that this Court is unusually restrained, not unusually activist.

Posted by: Gabriel Malor at June 28, 2012 08:44 AM (DhD8T)

68 So Gabe, you are saying liberals lie?

Posted by: Schwalbe: The Me-262© at June 28, 2012 09:35 AM (UU0OF)

69 Obama is a stuttering clusterf*ck of a miserable failure.

Posted by: steevy at June 28, 2012 10:41 AM (Xb3hu)






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